Subjective Uncertainty is in the mind of the property owners, e.g. they don't know where the boundary line is located. If it can be surveyed or the deeds are unambiguous is irrelevant.
Objective Uncertainty is a stricter standard. If the property can be surveyed or the deeds are unambiguous then the boundary line is not objectively uncertain is my understanding of it.
Here is a hypothetical question: suppose the Deed is unambiguous on its face, there are no apparent Deed conflicts with the neighbors but there are monuments not exactly where the Deed would indicate they should be located. Does that make the boundary objectively uncertain?
The background is I am studying California case law to attempt to determine if California requires objective uncertainty or subjective uncertainty in Agreed Boundary cases (among other things-this is just one question). Truthfully it appears to me that both are true (it sounds crazy but California is a large State with a lot of case law). I have found cases on both sides of the question such as the two unpublished cases I posted earlier this week. The Marin County case is pretty clearly a subjective uncertainty case; the Orange County case appears to be an objective uncertainty case (e.g. they weren't objectively uncertain).
Granted a close examination of the cases will reveal other reasons for finding for the Agreed Boundary Doctrine or not so the question of uncertainty could be unclear or not the real reason. It can be subtle.
> It can be subtle.
I call it grey(or is it gray?), but that's just me....
Where do we draw the line? That's the question we ask ourselves every day, we just don't know it. 1% is what happens to us and 99% is how we react to IT.
You bring up a good point; are we subject to THIS?(having IT thrown on us) or are we subbjecting ourselves to THIS(pulling IT down on us)? THAT I think is the question; and how we answer, is the key......
I've done some mountaineering/rock climbing; and that was the question, is the rock crashing down on you from nowhwere, or did you pull it onto you?
> Here is a hypothetical question: suppose the Deed is unambiguous on its face, there are no apparent Deed conflicts with the neighbors but there are monuments not exactly where the Deed would indicate they should be located. Does that make the boundary objectively uncertain?
Well, do the monuments have some known connection with the instrument(s) that created the boundary or are they just anonymous things that could be survey markers or could be goat stakes somewhere in the vicinity of where the writing would place the corner when applied to the ground?
Isn't the practical test of objective uncertainty whether two competent surveyors with the writing in view would independently arrive at substantially the same location for the boundary in question?
In the Utah case that was posted a few days ago, the two surveyors who apparently were involved could not reach substantially the same conclusions as to where the boundary was. The case report said nothing about their competence, but I'm willing to apply the Frymire Discretionary Hypothesis and not question the qualifications of either too closely in a public forum.
Utah doesn't require Objective Uncertainty
From Bahr vs Imus Utah 2011
¶47 The second element of boundary by agreement—
uncertainty or dispute about the location of a boundary—is necessary
to satisfy the statute of frauds. Without this element, an oral
agreement setting a boundary would effect an impermissible
“transfer of the land” instead of a permissible “location of the existing
estate.” Tripp, 276 P. at 918 (internal quotation marks omitted);
see also Brown, 232 P.2d at 207.
¶48 This uncertainty requirement mandates that a party seeking
to rely on boundary by agreement must show that she was
uncertain of the true location of the boundary between her property
and her neighbor’s property. Again, however, “objective uncertainty”
is not required. See Staker, 785 P.2d at 423.11 Subjective
uncertainty is sufficient. A requirement of objective uncertainty
would undermine the legitimate policy interests undergirding the
doctrine of boundary by agreement by restricting its potential use
to such a high degree that the doctrine would lose its utility.
¶
11 Accord Sobol v. Gulinson, 28 P.2d 810, 811 (Colo. 1933) (“The
fact that the boundary line could have been ascertained by having
a survey made does not . . . prevent there being an uncertainty,
within the meaning of the rule. To bring a case within the rule it is
not necessary that the true line should be absolutely unascertainable.”).
¶54 The second element—uncertainty or dispute about the location
of the boundary—is also satisfied. The record does not establish
objective uncertainty at the time the Imuses and the Bahrs’
predecessors in interest entered into their boundary agreement,
since their properties were located in a platted subdivision and a
survey could have revealed the true location of the boundary. But
we have rejected the need for objective uncertainty. All that is required
is subjective uncertainty regarding the location of the line.
In this case, the record demonstrates that neither the Imuses nor
the Wymans knew the location of the boundary line between their
properties.
Utah doesn't require Objective Uncertainty
Yes, I wonder whether Utah courts have simply given up on any boundary in Utah being objectively certain. I understood Dave Karoly to be asking specifically about California where very many boundaries are objectively certain, or so one would think.
Utah doesn't require Objective Uncertainty
Actually the Utah courts got it right. There is a long history of poor description writing in Utah mostly done by non surveyors. They don't all fit together and are not cardinal. etc (not mathematically precise). Many land descriptions were DIY. Or all sorts of aliquot parts mixed with metes without bounds. But the land got split up and occupied and roads, ditches, buildings, fences got built and these occupied boundaries have been respected for decades. So then comes along those that want to place the Record Title on the ground precisely according to the math. And this is just not surveyors but new landowners, county officials, title people and others. So what results is an other wise mostly peaceful and settled neighborhood all stirred up, enemies created and litigation. Record gaps and overlaps galore, adjacent parcels with completely different reference POB,s and mostly descriptions devoid of calls to monuments. What ever kind of uncertainty you want will likely appear as soon as two adjacent deeds are staked out.
Most of this has long been settled by the law, so long in fact that our current mostly non land owning society (except for houses) doesn't understand the law but many do know how to do math (or can coax a computer to do it).
[sarcasm]I used to be one of the poor bastards that new all the math up to and including calculus but didn't understand the law![/sarcasm]
It's also fairly easy to find a surveyor good at math and ignorant of the law. There are even surveyors that think the law is wrong and should be disregarded. So as soon as one of these guys hits the ground there ain't nothing but problems. Those landowners that don't ignore the surveyors work (many do) or just don't care about adjusting their fences after every survey just go on as normal (time for a new fence and what's a few feet here and there). Some landowners just weed the steel. Then you get the landowners that decide to sue or that are forced to because of some need usually required by a public agency. So off to court they go. I think the courts are probably just sick of seeing the same ignorant of the law cases one after another after another.............
So the court in Bahr vs Imus tried to make it clear and so simple that even a cave man could understand it. But I have my doubts about that.
But as the Utah court pointed out, if objective uncertainty is required then boundary by agreement is gutted, just the result the mathematician desires. But the math solution creates even more problems because the record is far from perfect, it just doesn't fit together. So we are right back to looking for a practical solution such as the courts have given us (at least those who want solutions and not litigation).
Yes there are objectively certain boundaries in Utah, plenty. But just because many places are fine doesn't mean it's the one and only way. Why can't we just apply and accept the law. Everyone would be better off.
Utah doesn't require Objective Uncertainty
> Actually the Utah courts got it right. There is a long history of poor description writing in Utah mostly done by non surveyors.
Well, in that Utah case that was cited the other day, wasn't the boundary of relatively recent origin? To me the fact that two surveyors couldn't even get the same answer for a modern boundary suggested that maybe nothing actually was objectively certain in Utah and judges decide accordingly. It seemed a reasonable choice to me, if one possibly limited to the special needs of Utah practice.
"there are monuments not exactly where the Deed would indicate they should be located"
That is an objective statement. It requires analysis of evidence in order to reach a conclusion.
Subjective is a belief that needs no grounding in analysis or fact.
For some legal purposes objective uncertainty is based on the reasonable person standard. In areas requiring special knowledge it is normally based on the professional standard. If the courts are going to make this distinction for the purpose of agreed boundaries, then an objective uncertainty should not exist until and unless there are at least two differing opinions on the location of the line by licensed surveyors. If that is the normal outcome for the majority of retracement surveys in a particular area, then probably it makes sense to allow agreed boundaries based only on subjective uncertainty. Or, the legislature could fix the licensing process for surveyors, which is obviously broken if these are the results.
Utah doesn't require Objective Uncertainty
So if you where surveying in Utah and had studied our case law what would you have done? Would you follow the law and the boundary establishment according to our law or are you above the law and entitled to make your own rules and corrections because you don't agree with the courts?
Thanks, Duane.
California is almost like two States, Southern and Northern. There are some differences in the two cases. The Marin County case is in an old subdivision and the Orange County case is in a relatively new subdivision which should be much easier to survey in. I don't think the Justices noticed or considered that, though. They seem to think everything is equally simple.
Dave, sounds interesting, I'll have to search back and read them. One of the quotes I like is "all retracement surveys are based in history" or something like that. Hard to find a rule of law that is applicable to historical development of boundaries for an entire state such as CA or NY when that is the reality.
Utah doesn't require Objective Uncertainty
> So if you where surveying in Utah ...
LOL. The detail to which I was referring was that two Utah surveyors couldn't put a lot line on the ground in substantially the same position by reference to the writings. If this is a general characteristic of surveying there (as I've understood that it is), then it would seem quite reasonable to want to find some means of adjudicating boundaries using professional fence builders instead of professional surveyors.
Well this thread got me to thinking. I have seen descriptions I would call "technically uncertain". That is where I could pick apart an aspect of the deed that renders it technically inadequate. A simple example might be where the deed says N10ºW instead of N10ºE, which makes for gross misclosure and/or other technically wrong conclusions. (Including not matching the adjoiner's property). But I doubt that is what you are talking about. I need to resolve the on-paper ambiguities, as well as the paper-to-ground ambiguities. (oops, there's another problem, 'ambiguities' also implies objective uncertainty). Anyway, I still think there are multiple examples of properties with objective uncertainty. Every time I find a property corner or other land corner location where there more than one monument in that general vicinity, I am of the thought that there is probably additional evidence that would support each of those monuments.
Just thinking out loud here. It seems like there can be a lot of ways to interpret objective uncertainty. If two surveyors reach different conclusions you could argue obj. unc.; or one of the surveyors might say that he reached the only conclusion that a reasonable surveyor could make.
> If two surveyors reach different conclusions you could argue obj. unc.; or one of the surveyors might say that he reached the only conclusion that a reasonable surveyor could make.
Well, if both surveyors are competent and are working from the same set of evidence, but arrive at substantially different conclusions as to the location of a boundary, then that sounds like objective uncertainty. The essential elements are, of course, that neither be acting in some demonstrably incompetent fashion and that both have the same evidence in view.
> Well, if both surveyors are competent and are working from the same set of evidence, but arrive at substantially different conclusions as to the location of a boundary, then that sounds like objective uncertainty. The essential elements are, of course, that neither be acting in some demonstrably incompetent fashion and that both have the same evidence in view.
Agreed, and if they are licensed the state board has granted them a license based on their testing and evaluation that they have met a level of competence to be able to do the job.
So the question now becomes whether it is a case of having "objective uncertainty" or whether one of the professionals have demonstrated incompetency.
That says to me, that whenever I come up on a survey where there is more than one monument meant to represent the same corner, that a boundary line agreement might be the best resolution to the (objectively) uncertain boundary; or that perhaps there is a surveyor who has clearly demonstrated incompetence and should be reported to the board.
I have done neither of those things.
(signed anonymous)
Subjective uncertainty, as I read it:
Kliban v. Dixon, 2011WL244816
Corte Madera, CA (Marin County)
http://scholar.google.com/scholar_case?q=Kliban+v.+Dixon&hl=en&as_sdt=2,5&case=5940361141294737840&scilh=0
Objective uncertainty not present, as I read it:
Hoggatt v. Pezdek, California Court of Appeal, Fourth District, 2011
Orange County
http://scholar.google.com/scholar_case?q=Hoggatt+v.+Pezdek&hl=en&as_sdt=2,5&case=11757679582822094360&scilh=0
Both cases affirmed the Superior Court decision. A finding of ownership is a finding of ultimate fact therefore they are more likely to affirm than not.
I think what you describe is a case of objective uncertainty. I'm not sure if needing to calculate a closure (most lay people would not know how) to uncover the problem makes it patent or not.
Utah doesn't require Objective Uncertainty
What if the writing doesn't have any definite basis of bearing statement? What if the POB or commencement point is referenced to an interior aliquot corner that has never been established or monumented? Both of these things are quite common in the writings. I'm not necessary sticking up for two different surveyors not getting the same answer but it's not all cut and dried. According to the law they both missed the established boundary, wasn't even looking for the right evidence. Would you have considered the boundary by agreement evidence or just staked out the record more precisely? No matter how perfect your laying down the record would have been you still would have blew off locating the boundary and caused the lawsuit. Once the boundary location is established the location of the original (according to the record) lot line is irrelevant (not the boundary between the two adjoining titles).
It sure must be simple if all one has to do is get the measurements correct. Personally I don't even see any need for professional licensing for that. I'm glad all your records are perfect, that just doesn't exist in Utah and I suspect it isn't so in most other places.
Anyway, I need to get some important stuff done so you get the last post on this.
Utah doesn't require Objective Uncertainty
The PLSS system was set up to be able to be pantented out CHEAPLY, e.g. with as little surveying as possible.
If you had 3-40s in one Section and 1-40 in another Section in your patent (like a Tetris piece) then there would be 3 original monuments on your boundaries and perhaps 6 not set by the GLO. The idea was the local surveyors would set those after the fact and everyone would hold them as the boundary corners. Unfortunately it didn't work out quite that perfectly. Sometimes County Surveyors used methods not necessarily approved in the Statutes; some think we need to dredge up those ancient "problems" which aren't really problems, just differences.
